Citation Nr: 1327528
Decision Date: 08/28/13 Archive Date: 09/05/13
DOCKET NO. 10-32 647 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disorder, and if so, whether service connection is warranted.
2. Entitlement to service connection for a left knee disorder.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Van Wambeke, Counsel
INTRODUCTION
The Veteran served on active duty from October 1970 to October 1991.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from adverse rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.
The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in March 2011. A transcript is of record.
The evidence of record reveals that since service connection for a lumbar spine disability was established, the Veteran has been seen with complaints of pain radiating to both lower extremities. These complaints are distinct from any complaints made in reference to his knees. The issue of whether the Veteran is entitled to a separate rating for neurological impairment associated with his lumbar spine disability has, therefore, been raised by the record. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.
The reopened claim for service connection for a right knee disorder, and the claim for service connection for a left knee disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
An unappealed December 1992 rating decision denied the claim for entitlement to service connection for a right knee disorder on the basis that the Veteran's service treatment records revealed no complaint of, treatment for, or diagnosis pertaining to his right knee; the subsequently received evidence includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim.
CONCLUSION OF LAW
New and material evidence has been submitted to reopen the claim for service connection for a right knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's duties to notify and assist
VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims to reopen finally disallowed claims, the VA's duties require notice of the evidence needed to reopen the claim as well as the evidence to establish the underlying benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006).
As the issue of whether new and material evidence has been submitted to reopen the claim for service connection for a right knee disorder has been resolved in the Veteran's favor, any error in notice required by Kent is harmless error and analysis of whether VA has satisfied its other duties to duties to notify and assist is not in order.
Claims to reopen
An unappealed rating decision issued in December 1992 denied a claim for service connection for a right knee disorder on the basis that the Veteran's service treatment records revealed no complaint of, treatment for, or diagnosis pertaining to his right knee. The Veteran filed a claim to reopen the issue of entitlement to service connection for a right knee disorder in July 2007, and this appeal ensues from the adverse rating decisions issued by the RO in Little Rock, Arkansas, which declined to reopen the claim.
Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b).
New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).
For the purpose of establishing whether new and material evidence has been received, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).
The Board notes that no pertinent evidence was received within the one year period following the notice of the December 1992 rating decision. The evidence added to the record thereafter reveals that the Veteran reports injuring his right knee during his over 20 years of active duty service as a result of running in boots and long marches. See e.g., March 2011 hearing transcript. The Veteran is competent to make these assertions and the assertions are not cumulative or redundant of the evidence previously of record. In addition, these assertions are material because they raise a reasonable possibility of substantiating the claim.
Having found that new and material evidence has been presented, reopening of the claim for entitlement to service connection for a right knee disorder is in order. For the reasons discussed below, additional development of the evidence is needed before the reopened claim is decided.
ORDER
The Board having determined that new and material evidence has been received, reopening of the claim for service connection for a right knee disorder is granted.
REMAND
The Board finds that additional development is needed before it can adjudicate the claims remaining on appeal.
As an initial matter, the Veteran's reopened claim for service connection for a right knee disorder has not been adjudicated by the AOJ in the first instance since the Veteran's July 2007 claim to reopen was received. Consequently, due process mandates that this matter be remanded in accordance with Bernard v. Brown, 4 Vet. App. 384, 394 (1993). See also Hickson v. Shinseki, 23 Vet. App. 394 (2010).
It appears that there may be outstanding VA treatment records. The earliest record of treatment from the Little Rock VA Medical Center (VAMC) is dated in November 2005. It does not appear that this was the Veteran's first visit. In addition, he has reported VA treatment in 2003, see undated VA Form 21-4142, and a September 1996 private treatment record documents that he had been seen by VA. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). For the sake of completeness, VA treatment records from the Central Arkansas Healthcare System dated since the Veteran's October 1991 discharge from active duty service must be requested.
Service treatment records reveal that the Veteran was seen with complaints of pain down the back of his legs in August 1979. See health record. Although the complaint made was not specific to the knees, the Veteran contends that his knees bothered him during service as a result of running in boots and participating in long marches. He also contends that when he reported swollen or painful joints at the time of his July 1991 retirement examination, he was referencing his knees. The Board has conceded that after 20 years of military service, the Veteran would have in-service issues with his knees as they had their share of trauma. See page 9 of hearing transcript. Post-service medical evidence reveals that the Veteran has received treatment related to both knees. Several diagnoses or assessments have been made, to include internal derangement of the right knee, bilateral knee osteoarthritis; and bilateral knee pain. See private treatment records from Dr. T. and Dr. R. Given the Board's concession as to in-service knee problems and the post-service medical evidence indicating a current bilateral knee disorder, the claims must be remanded in order to afford the Veteran an appropriate VA examination to determine whether any current bilateral knee disorder is etiologically related to active service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012).
As the claims are being remanded for the foregoing reasons, efforts should also be made to obtain records from an orthopedist in Monroe by the name of Dr. L., as referenced in a November 2007 private treatment record.
The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012).
Accordingly, the case is REMANDED for the following action:
1. Request VA records from the Central Arkansas Healthcare System (both Little Rock and North Little Rock facilities) dated from October 1991 to the present. If any of these records are in a retired or archived status, efforts should be made to acquire the records. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile.
2. Make efforts to obtain records from an orthopedist in Monroe by the name of Dr. L., as referenced in a November 2007 private treatment record.
3. When the foregoing development has been completed, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any bilateral knee disorder(s). The claims folder should be made available to and reviewed by the examiner. Any indicated studies should be performed. A detailed history should be taken from the Veteran regarding in-service and post-service knee problems.
The examiner should identify all bilateral knee disorder(s).
Based on the examination and review of the record, the examiner is requested to address whether it is at least as likely as not (50 percent or higher degree of probability) that any bilateral knee disorder(s) is related to his active military service.
The examiner is informed that the Board has conceded that after 20 years of military service, the Veteran would have in-service issues with his knees.
A comprehensive report, including complete rationales for all conclusions reached, must be provided.
4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented.
5. Finally, readjudicate the claims. If any benefit sought on appeal is not granted, issue an updated supplemental statement of the case (SSOC). The Veteran should also be given an appropriate amount of time to respond to it.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs